Questions are still swirling about whether Andrew McCabe will be indicted on charges of lying to investigators about events just before the 2016 election. And his lawyers are zeroing in on whether the DOJ is employing a double standard to pursue him
Questions are still swirling about whether former FBI Deputy Director Andrew McCabe will be indicted on charges of lying to investigators about events just before the 2016 election. But McCabe’s lawyers and others tracking the issue are zeroing in on whether the Justice Department is employing a double standard to pursue him.
“While some of the essential elements of obstruction of justice differ from the essential elements of false statements, the Attorney General’s analysis is equally applicable here: the absence of an underlying crime, or even underlying misconduct, bears directly on whether an individual had the requisite criminal intent to make a false statement, and whether the government will be able to prove that a defendant had such criminal intent,” the memo says.
“McCabe’s attorneys are making an important argument that goes to the heart of prosecutorial discretion and the fact that consistency in decision-making by the Department of Justice needs to be questioned here,” said Ellen Podgor, a law professor at Stetson University. “Proceeding with a case of just a ‘shortcut offense’ is contrary to statements made by Attorney General Barr with regard to the Mueller Report of needing an underlying crime for a prosecution.
Of course, the potential obstruction of justice issue with Trump and the false statement charges believed to be under consideration for McCabe are two different crimes. McCabe’s memo acknowledges some distinctions, with obstruction focused on corrupt intent and false statements on a deliberate intent to deceive, although lawyers often lump such offenses together as “obstructive” acts.
McCabe was fired from the FBI in March 2018 after a Justice Department inspector general report found he showed a “lack of candor” when he allegedly told the FBI’s internal investigators and, later, the inspector general’s team that he hadn’t been involved in authorizing FBI lawyer Lisa Page and spokesman Mike Kortan to talk to The Wall Street Journal about the FBI’s efforts to press forward with an investigation of the Clinton Foundation despite what some at the FBI viewed as resistance from...
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